For the fifteen years prior to the Supreme Court's 1954 decision in Brown v. Board of Education, "civil rights" did not refer to a unified, coherent category. Rather, the content of the term was open, changing, and contradictory. The lawyers of the Civil Rights Section of the Department of Justice, which was created in 1939, were among those thinking about, and experimenting with, different ways of practicing and framing civil rights in the 1940s. Their practice shows how, as the Great Depression faded and World War II loomed, the most prominent civil rights issues shifted from the labor arena to the rights of minorities, especially African Americans. Because of the doctrinal uncertainties that accompanied the demise of the Lochner era, the lawyers of the Civil Rights Section looked to Reconstruction for inspiration, constitutional authority, and federal power. As the Section's lawyers explored the boundaries of their new authority, they emphasized enforcement of the Thirteenth Amendment and involuntary servitude statutes. They came to use the Thirteenth Amendment as a vehicle for attacking legal and economic coercion broadly defined. This Article narrates the history of the Civil Rights Section and analyzes its practice as a moment in the creation of modern civil rights law. Emphasizing that the wartime turn to racial issues did not eliminate labor from the Section's civil rights practice, it describes the resonances between the Section's civil rights framework-and its uses of the Thirteenth Amendment in particular-and both Reconstruction era and New Deal notions of free labor. Viewed against the backdrop of a historical concern with labor and the mid-century realities of involuntary servitude, we can see in the Section's practice a framework for a labor-infused civil rights that has, for the most part, since been lost.
Risa L. Goluboff,
The Thirteenth Amendment and the Lost Origins of Civil Rights,
50 Duke Law Journal
Available at: https://scholarship.law.duke.edu/dlj/vol50/iss6/2